Amicus Curiae Brief — Republican National Committee, et al., Applicants v. Faith Genser, et al.
Supreme Court briefOct 30, 2024
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No. 24A408
In the Supreme Court of the United States
REPUBLICAN NATIONAL COMMITTEE &
REPUBLICAN PARTY OF PENNSYLVANIA,
Applicants,
v.
FAITH GENSER, et al.,
Respondents.
ON EMERGENCY APPLICATION FOR STAY PENDING DISPOSITION OF WRIT OF
CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA
BRIEF OF COMMONWEALTH OF PENNSYLVANIA &
PENNSYLVANIA DEPARTMENT OF STATE AS AMICI CURIAE
IN OPPOSITION TO THE EMERGENCY APPLICATION FOR STAY
SEAN A. KIRKPATRICK
Office of Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120
KATHLEEN M. KOTULA
KATHLEEN A. MULLEN
Pennsylvania Department
of State
306 N. Office Bldg.
401 North St.
Harrisburg, PA 17120-0500
AIMEE D. THOMSON
Counsel of Record
MICHAEL J. FISCHER
JACOB B. BOYER
Office of General Counsel
333 Market Street, 17th Floor
Harrisburg, PA 17101
(223) 234-4986
aimeethomson@pa.gov
October 30, 2024
Counsel for Amici Curiae Commonwealth of Pennsylvania &
Pennsylvania Department of State
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................... iii
INTEREST OF AMICI CURIAE ................................................................................... 1
INTRODUCTION AND SUMMARY OF THE ARGUMENT ...................................... 2
ARGUMENT .................................................................................................................. 4
I.
The RNC seeks to upend the status quo. ........................................................... 4
II.
The RNC has suffered no redressable injury. .................................................... 6
III.
The RNC’s requested segregation order exceeds the facts and
parties of this case. ........................................................................................... 10
IV.
The Pennsylvania Supreme Court did not “transgress the
ordinary bounds of judicial review.” ................................................................. 12
CONCLUSION............................................................................................................. 15
ii
TABLE OF AUTHORITIES
Cases
Abbott v. Perez, 585 U.S. 579 (2018) ............................................................................. 9
ASARCO Inc. v. Kadish, 490 U.S. 605 (1989) .............................................................. 7
Bush v. Gore, 531 U.S. 1046 (2000) ............................................................................. 10
Chafin v. Chafin, 568 U.S. 165 (2013) .......................................................................... 9
DNC v. Wisc. State Legis., 141 S. Ct. 28 (2020) ............................................................ 9
Garrison v. Hudson, 468 U.S. 1301 (1984) ................................................................. 10
Hollingsworth v. Perry, 558 U.S. 183 (2010) ............................................................ 7, 9
In re Allegheny Cnty. Provisional Ballots in the 2020 Gen. Election, 241
A.3d 695 (Pa. Cmwlth. 2020) ................................................................................... 5
In re Canvass of Provisional Ballots in 2024 Primary Election, 322 A.3d
900 (Pa. 2024) ........................................................................................................... 7
John Doe Agency v. John Doe Corp., 488 U.S. 1306 (1989) ................................... 9, 10
Merrill v. Milligan, 142 S. Ct. 879 (2022) ..................................................................... 9
Moore v. Harper, 142 S. Ct. 1089 (2022) ....................................................................... 9
Moore v. Harper, 600 U.S. 1 (2023) ................................................................... 3, 12, 14
Pa. Democratic Party v. Boockvar, 238 A.3d 345 (Pa. 2020) ...................................... 11
Purcell v. Gonzalez, 549 U.S. 1 (2006) .......................................................................... 9
Republican Party of Pa. v. Boockvar, No. 20A84, 2020 WL 6536912 (Nov.
6, 2020)................................................................................................................ 9, 11
RNC v. DNC, 589 U.S. 423 (2020) ................................................................................ 9
Thompson v. Dewine, 959 F.3d 804 (6th Cir. 2020).................................................... 10
TransUnion LLC v. Ramirez, 594 U.S. 413 (2021)....................................................... 6
Constitutional Provisions
Pa. Const. art. IV, § 4.1 ................................................................................................. 1
iii
Statutes
1 Pa. Const. Stat. § 1921 ............................................................................................. 13
1 Pa. Const. Stat. § 1922 ............................................................................................. 13
1 Pa. Const. Stat. §§ 1501-1991................................................................................... 13
25 Pa. Stat. § 2621 ......................................................................................................... 1
25 Pa. Stat. § 3050 ................................................................................................... 7, 13
25 Pa. Stat. § 3157 ......................................................................................................... 7
25 Pa. Stat. § 3159 ......................................................................................................... 1
25 Pa. Stat. §§ 3146.1-3146.9 ........................................................................................ 2
25 Pa. Stat. §§ 3150.11-3150.17 .................................................................................... 2
52 U.S.C. § 21082 ........................................................................................................... 7
71 Pa. Stat. § 273 ........................................................................................................... 1
Regulations
210 Pa. Code § 69.414 .................................................................................................... 5
Pa. Dep’t of State, Pennsylvania Provisional Voting Guidance Version
1.1 (Oct. 21, 2020) ..................................................................................................... 5
Pa. Dep’t of State, Pennsylvania Provisional Voting Guidance Version
2.0 (Oct. 12, 2023) ..................................................................................................... 5
Pa. Dep’t of State, Pennsylvania Provisional Voting Guidance Version
2.1 (Mar. 11, 2024).................................................................................................... 5
Pa. Dep’t of State, Pennsylvania Provisional Voting Guidance Version
2.2 (Oct 24, 2024) ...................................................................................................... 5
iv
INTEREST OF AMICI CURIAE
The Commonwealth of Pennsylvania and the Pennsylvania Department of
State file this brief as Amici Curiae in opposition to the Emergency Application for
Stay filed by Intervenor-Applicants the Republican National Committee and the
Republican Party of Pennsylvania (the “RNC”).
The Commonwealth of Pennsylvania, represented by its chief law officer, the
Attorney General, Pa. Const. art. IV, § 4.1, has a significant interest in its
sovereignty, in the integrity of its elections, and in the enforcement of its laws as
interpreted by its highest court.
The Department of State and its head, the Secretary of the Commonwealth,
have similar interests. Both the Department and the Secretary also have vital
responsibilities for the administration of Pennsylvania’s elections. The Secretary is
Pennsylvania’s Chief Election Official. Among other obligations, the Secretary has
the duty “[t]o receive from county boards of elections the returns of primaries and
elections, to canvass and compute the votes cast for candidates * * *; to proclaim the
results of such primaries and elections, and to issue certificates of election to the
successful candidates at such elections.” 25 Pa. Stat. § 2621(f); see also id. § 3159. The
Department “shall have the power, and its duty shall be, to care for, compile, publish,
and certify, returns of elections.” 71 Pa. Stat. § 273.
As such, the Commonwealth and the Department each have a strong interest
in ensuring that counties are canvassing ballots and certifying election results
consistent with the requirements of the Pennsylvania Election Code.
INTRODUCTION AND SUMMARY OF THE ARGUMENT
The Commonwealth of Pennsylvania and the Pennsylvania Department of
State submit this brief to highlight aspects of Pennsylvania law and practice that
warrant denying the RNC’s application.
1.
The Pennsylvania Supreme Court’s decision in this case did not change
Pennsylvania’s election rules. As the RNC is well aware, many of Pennsylvania’s 67
county boards of elections have, for years, interpreted the Pennsylvania Election Code
to require them to count provisional ballots cast by registered, eligible voters whose
mail ballots were invalid due to a disqualifying defect.1 Although the RNC tells this
Court that the Pennsylvania Supreme Court has “drastically changed Pennsylvania’s
election rules,” Stay App. at 17, the RNC unsuccessfully challenged this practice of
county boards in 2022, correctly calling it “common.” See RNC Br. at 40-42, RNC v.
Chapman, No. 100 MAP 2022, 2022 WL 17298488 (Pa. Oct. 5, 2022). Here, the
Pennsylvania Supreme Court’s decision confirmed the legality of an existing practice
by resolving “a state statutory interpretation question duly raised by the litigants in
a case on [the court’s] normal appellate docket.” App. 47a. And the Pennsylvania
Supreme Court issued its decision ahead of the 2024 general election at the RNC’s
own request; it cannot now take umbrage with the timing.
2.
In this case, the Pennsylvania Supreme Court corrected the contrary
and erroneous practice of the Butler County Board of Elections and ordered it to count
1 The Election Code permits voting by absentee ballot, 25 Pa. Stat. §§ 3146.1-
3146.9, and by no-excuse mail-in ballot, 25 Pa. Stat. §§ 3150.11-3150.17. Amici refer
to both as “mail ballots.”
2
two provisional ballots cast in the April 2024 Democratic primary election. The RNC
is not entitled to a stay because it is not irreparably injured—or injured at all—by
this order. For the same reason, the RNC does not have Article III standing. The RNC
does not even try to show it has suffered injury on the facts of this appeal, because it
cannot. Moreover, a “stay [of] the Pennsylvania Supreme Court’s order,” Stay App. at
37, would prevent only Butler County from counting two provisional ballots cast in
the 2024 Democratic primary election. The RNC provides no prior case in which a
stay was issued based only on a lower court decision’s precedential effect.
3.
For similar reasons, in the posture of the case that the RNC brings to
this Court, an order segregating the “affected provisional ballots,” Stay App. at 37,
would require only that Butler County segregate two provisional ballots from the
2024 Democratic primary election. Pennsylvania’s 66 other counties are not parties
to this case.
4.
Finally, the Pennsylvania Supreme Court’s decision here is comfortably
within “the ordinary bounds of judicial review.” Moore v. Harper, 600 U.S. 1, 36
(2023). That court applied Pennsylvania’s well-established rules of statutory
interpretation to arrive at its conclusion. Granting certiorari here would require this
Court to step into the shoes of the Pennsylvania Supreme Court on a routine question
of state statutory interpretation—inviting a barrage of requests for federal court
review every time a state court interprets a state election law.
3
ARGUMENT
I.
The RNC seeks to upend the status quo.
Since well before this case was filed, many of Pennsylvania’s 67 county boards
of elections have interpreted the Pennsylvania Election Code to require them to count
provisional ballots cast by registered, eligible voters whose mail ballots were rendered
invalid due to a disqualifying defect. Contra Stay App. at 3, 11-12, 13, 17, 19, 36. In
other words, those boards have long counted provisional ballots under circumstances
like those here.
The RNC has known for years that counties interpreted and implemented
Pennsylvania law this way. Indeed, in a 2022 suit against all 67 counties, the RNC
correctly described this interpretation as “common” among county boards of elections.
See RNC Br. at 40-42, RNC v. Chapman, No. 100 MAP 2022, 2022 WL 17298488 (Pa.
Oct. 5, 2022).
Moreover, since 2020, the Department of State’s guidance—which is not
binding, but is routinely solicited by county boards of elections—has advised county
boards to count a provisional ballot if the “voter’s mail‐in or absentee ballot was
rejected for a reason unrelated to the voter’s qualifications,” if the voter “meets other
provisional ballot requirements,” and “if the county determines that the voter is
eligible to vote.” Pa. Dep’t of State, Pennsylvania Provisional Voting Guidance
4
Version 1.1 (Oct. 21, 2020).2 The Department is aware that many county boards have
followed this guidance. See also, App. 10a n.15 (discussing Keohane v. Del. Cnty. Bd.
of Elections, No. 2023-4458 (Del. Cnty. Ct. Com. Pl. Sept. 21, 2023), which ordered
the Delaware County Board of Election to count provisional ballots under the same
circumstances).3
The RNC’s suggestion that a stay is needed to avoid late changes to election
rules therefore grossly perverts the status quo and has the Purcell principle exactly
backwards. The Pennsylvania Supreme Court’s affirmance maintained the status quo
and ensured uniformity across all counties. It is the entry of a stay, on the eve of the
election, that would cause maximum disruption and confusion.
2 Available at: https://www.pa.gov/content/dam/copapwp-pagov/en/dos/resourc
es/voting-and-elections/directives-and-guidance/archived/PADOS_ProvisionalBallots
_guidance_1.0.pdf.
Accord Pa. Dep’t of State, Pennsylvania Provisional Voting Guidance Version
2.2 (Oct 24, 2024), https://www.pa.gov/content/dam/copapwp-pagov/en/dos/resources/
voting-and-elections/directives-and-guidance/2024-provisionalballots-guidancev2.2.pdf; Pa. Dep’t of State, Pennsylvania Provisional Voting Guidance Version 2.1
(Mar. 11, 2024), https://www.pa.gov/content/dam/copapwp-pagov/en/dos/resources/
voting-and-elections/directives-and-guidance/2024-ProvisionalBallots-Guidance2.1.pdf; Pa. Dep’t of State, Pennsylvania Provisional Voting Guidance Version 2.0
(Oct. 12, 2023)of, https://www.pa.gov/content/dam/copapwp-pagov/en/dos/resources/
voting-and-elections/directives-and-guidance/archived/2023-ProvisionalBallotsGuidance-2.0.pdf.
3 In 2020, Pennsylvania’s intermediate appellate Commonwealth Court issued
an unreported decision that concluded, with little analysis, that provisional ballots
could not be counted if the voter had returned an invalid mail ballot. In re Allegheny
Cnty. Provisional Ballots in the 2020 Gen. Election, 241 A.3d 695 (Pa. Cmwlth. 2020).
This opinion was non-precedential, see 210 Pa. Code § 69.414(a), and many counties
did not follow it, contra Stay App. 2, 3, 7, 8, 28.
5
But even if the Pennsylvania Supreme Court’s decision could be construed to
change any election rule, the decision—and its timing—were at the RNC’s request.
In its Petition for Allowance of Appeal, filed on September 8, 2024, the RNC asked
the Pennsylvania Supreme Court to “grant allowance of appeal so that the rules and
procedures governing Pennsylvania elections are appropriately determined by [the
Pennsylvania Supreme] Court before the 2024 General Election is upon us.” RNC Pet.
for Allowance of Appeal, at 37, Genser v. Butler Cnty. Bd. of Elections, No. 240 WAL
2024 & No. 241 WAL 2024 (Pa. Sept. 8, 2024).4 The RNC cannot now complain about
timing just because it dislikes the Court’s answer.
II.
The RNC has suffered no redressable injury.
The RNC has not only failed to provide this Court with a fair account of the
status quo; it has also failed to provide this Court with a fair account of the facts of
this case. Properly described, the facts show that the RNC has neither the injury-infact necessary for Article III standing nor the irreparable injury necessary for a stay.
To bring a case in federal court, a petitioner must show “(i) that he suffered an
injury in fact that is concrete, particularized, and actual or imminent; (ii) that the
injury was likely caused by the defendant; and (iii) that the injury would likely be
redressed by judicial relief.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021).
These Article III standing rules apply equally to a petitioner requesting federal court
review of a state supreme court decision. ASARCO Inc. v. Kadish, 490 U.S. 605, 623-
4 Available at: https://www.pacourts.us/Storage/media/pdfs/20241003/172715-
sept.8,2024-petitionforallowanceofappeal.pdf.
6
24 (1989). In addition, to obtain a stay pending appeal, a movant must make a strong
showing of irreparable harm. Hollingsworth v. Perry, 558 U.S. 183, 190 (2010).
This case is about two ballots cast in the 2024 Democratic primary. In April
2024, two Democratic voters attempted to vote in that election by mail ballot but
forgot to enclose their ballots in a secrecy envelope, rendering the ballot invalid. App.
3a. Seeking nonetheless to vote once—and only once—in that election, the two voters
each filled out a provisional ballot at their polling place, as Pennsylvania and federal
law entitle them to do. App. 24a; In re Canvass of Provisional Ballots in 2024 Primary
Election, 322 A.3d 900, 905 (Pa. 2024) (“When an elector arrives at the polling place,
if there is any doubt about his eligibility to vote, he may cast a provisional ballot.”);
25 Pa. Stat. § 3050(a.2), (a.4)(1); 52 U.S.C. § 21082(a); contra Stay App. at 6. No party,
including the RNC, disputed the right of these voters to cast a provisional ballot. App.
28a n.26.
The Butler County Board of Elections rejected the provisional ballots because
the two Democratic voters had previously tried, but failed, to return a mail ballot.
App. 5a. Then, six months ago, the two Democratic voters challenged Butler County’s
decision under a provision of the Election Code that permits “[a]ny person aggrieved
by any order or decision of any county board regarding the computation or canvassing
of the returns of any primary or election” to file an appeal with two days in that
county’s court of common pleas. 25 Pa. Stat. § 3157(a); see App. 5a-6a. The Butler
County Court of Common Pleas subsequently granted intervenor status to the RNC
7
and to the Pennsylvania Democratic Party. App. 6a. On August 16, 2024, the trial
court issued an opinion dismissing the challenge. App. 7a.
The voters promptly appealed. On September 5, 2024, after an expedited
briefing schedule, the Commonwealth Court reversed the trial court and held that
the Election Code required Butler County to count the provisional ballots for the 2024
Democratic primary. App. 8a.
The RNC asked the Pennsylvania Supreme Court to review Commonwealth
Court’s decision and issue a decision ahead of the 2024 general election. See generally
RNC Pet. for Allowance of Appeal, Genser v. Butler Cnty. Bd. of Elections, No. 240
WAL 2024 & No. 241 WAL 2024 (Pa. Sept. 8, 2024). After granting the RNC’s request,
the Pennsylvania Supreme Court affirmed the Commonwealth Court’s order that the
Election Code required Butler County to count the two provisional ballots in the 2024
Democratic primary. App. 44a-45a.
The RNC is not harmed by an order that two ballots be counted in Butler
County’s 2024 Democratic primary election, nor does it attempt to explain how it
could be. Without such harm, it lacks standing.
Similarly, the RNC’s sole articulations of irreparable harm—unspecified
injuries to “political operations” and a passing reference to the 2024 general election
mooting a forthcoming petition for a writ of certiorari, Stay App. at 34, 32—distort
the facts. For one, the RNC has known for years that many counties count these
provisional ballots, supra at 4, and offers no reason why uniformity harms its political
operations. For another, a case is moot “when the issues presented are no longer live
8
or the parties lack a legally cognizable interest in the outcome.” Chafin v. Chafin, 568
U.S. 165, 172 (2013) (cleaned up). Nothing about the forthcoming 2024 general
election would moot any petition for writ of certiorari for an order related to the 2024
primary election. Cf. John Doe Agency v. John Doe Corp., 488 U.S. 1306, 1308-09
(1989) (Marshall, J., in chambers) (absent stay, order requiring disclosure of Vaughn
index would moot appellate challenge to disclosure of Vaughn index).
In the posture of this case, a stay of the “Pennsylvania Supreme Court’s order,”
Stay App. at 37, would prevent only Butler County from counting two provisional
ballots cast in the 2024 Democratic primary election. What RNC seeks instead is a
stay of the Pennsylvania Supreme Court decision’s precedential effect. But the RNC
cites no decision in which this Court stayed a lower court ruling based solely on the
future precedential effect of its reasoning. To the contrary: in every single case cited
by the RNC, a stay was requested because of the relief ordered by the lower court in
that matter.5
5 E.g., Moore v. Harper, 142 S. Ct. 1089 (2022) (declining to grant stay of North
Carolina Supreme Court judgment striking down congressional districting map);
Merrill v. Milligan, 142 S. Ct. 879 (2022) (granting stay of federal district court order
striking down Alabama’s redistricting plan and ordering development of a new plan);
Republican Party of Pa. v. Boockvar, No. 20A84, 2020 WL 6536912 (Nov. 6, 2020) (in
application for stay of this Court’s judgment ordering counties to count certain mail
ballots received after Election Day in 2020, ordering segregation of those ballots);
DNC v. Wisc. State Legis., 141 S. Ct. 28 (2020) (affirming stay of federal district court
order extending state law deadline to receive absentee ballots for the 2020 General
Election); RNC v. DNC, 589 U.S. 423 (2020) (granting stay of federal district court
order enjoining enforcement of certain Wisconsin statutory requirements for its April
7, 2020, election); Abbott v. Perez, 585 U.S. 579 (2018) (reversing orders of three-judge
panel directing Texas to not conduct that year’s elections using certain districting
plans); Chafin, 568 U.S. 165 (discussing stays and mootness in the context of court
(continued…)
9
Even if the RNC could seek a stay based on the Pennsylvania Supreme Court’s
authority to establish state precedent, the RNC does not identify any concrete,
particularized, actual, and irreparable harms from the decision. All voters are
entitled to cast a provisional ballot at their polling place if they registered but there
is doubt about their eligibility to vote. Republican voters, just as Democratic voters,
would have that ballot counted if their mail ballot were void due to a disqualifying
defect. The RNC’s allegations of harm are entirely speculative.
III.
The RNC’s requested segregation order exceeds the facts and parties
of this case.
The RNC’s alternative request to “order[] the segregation of the affected
provisional ballots,” Stay App. at 37, would mean only that the Butler County Board
of Elections continues to segregate Ms. Genser’s and Mr. Matis’s ballots—the only
provisional ballots implicated by the order entered below.
Nonetheless, the RNC asks this Court to order all 67 county boards of elections
in Pennsylvania to segregate and separately tally certain provisional ballots that will
order returning a child to the country of their habitual residence); Hollingsworth, 558
U.S. 183 (granting stay of federal district court order permitting the broadcast of a
federal trial); Purcell v. Gonzalez, 549 U.S. 1 (2006) (vacating federal court of appeals
order enjoining Arizona from enforcing state measure while appeals were pending);
Bush v. Gore, 531 U.S. 1046 (2000) (granting stay of Florida Supreme Court judgment
ordering tabulation and manual recounts in certain Florida counties in the 2000
General Election); John Doe Agency, 488 U.S. 1306 (granting stay of federal district
court order requiring disclosure of Vaughn index); Garrison v. Hudson, 468 U.S. 1301
(1984) (Burger, C.J., in chambers) (granting stay pending disposition of writ of
certiorari of lower court order directing retrial, where petition for certiorari
challenged lower court’s decision); Thompson v. Dewine, 959 F.3d 804 (6th Cir. 2020)
(granting stay of federal district court order enjoining Ohio’s application of its general
election and ballot-initiative laws to plaintiffs ahead of the 2020 General Election).
10
be cast during the 2024 general election. Stay App. at 4-5, 16-17, 35-36. Such an order
would be well beyond the scope of this case.
All 67 county boards of elections are not before the Court in this matter—only
Butler County is. And every provisional ballot yet to be cast in the forthcoming
election is likewise not before the Court—only two provisional ballots from the 2024
Democratic primary are.
For this reason, the segregation order in Republican Party of Pa. v. Boockvar,
No. 20A84, 2020 WL 6536912 (Nov. 6, 2020) from November 2020 is wholly inapt,
contra Stay App. at 36. There, this Court had before it as parties all 67 county boards
of elections (and the Secretary) and was presented with an order that required certain
conduct for the 2020 general election. Pa. Democratic Party v. Boockvar, 238 A.3d
345, 352-53 (Pa. 2020). Due to the COVID-19 pandemic and U.S. Postal Service
delays, the petitioners had asked the Pennsylvania Supreme to declare the Election
Code’s statutory deadline for receiving mail ballots, which is 8 p.m. on Election Day,
unconstitutional under the circumstances. Id. at 362-65. The Pennsylvania Supreme
Court granted relief and ordered all 67 county boards of elections to count mail ballots
received up to three days after Election Day in November 2020. Id. at 386.
No such order exists here. Had the RNC wished to bring all 67 counties
together in one action, it could have sued them years ago—as it did, unsuccessfully,
in 2022. See supra at 4. Having not done so here, the RNC cannot transform this case
into something it is not and obtain relief beyond the facts and parties before the
Court.
11
IV.
The Pennsylvania Supreme Court did not “transgress the ordinary
bounds of judicial review.”
As this Court has said, “State courts are the appropriate tribunals * * * for the
decision of questions arising under their local law, whether statutory or otherwise.”
Moore, 600 U.S. at 34. For state laws regulating federal elections, federal courts may
police the margins of state court review to ensure state courts do “not transgress the
ordinary bounds of judicial review.” Id. at 36. While this Court has not established a
“test by which [it] can measure state court interpretation of state law in cases
implicating the Elections Clause,” id., the Pennsylvania Supreme Court’s
interpretation of the state laws involved here survives any standard.
As Justice Dougherty succinctly stated in concurrence below: “the fact that the
majority and my learned colleagues in dissent interpret the relevant statutes
differently does not in any way suggest this Court has exceeded the scope of judicial
review and usurped the General Assembly’s power to regulate federal elections.” App.
47a (cleaned up). Instead, he observed that the court’s careful interpretation of the
Pennsylvania Election Code’s plain language “effectuates the intent of our General
Assembly to enable provisional voting, even if the dissenters disagree.” Id. (emphasis
in original).
Indeed, although Justices Brobson and Wecht disagreed with the majority’s
interpretation of the Election Code, neither joined Justice Mundy’s dissent suggesting
the majority’s reasoning was too far afield. And despite dissenting on the merits,
Justices Brobson and Wecht joined with their colleagues in the majority and rejected
the RNC’s application to stay or modify the judgment based on the same legal theory
12
presented to this Court now. Just as federal court jurists disagree about how to
interpret a federal statute, so too do state court Justices; such disagreement is not
evidence of unconstitutional arrogation.
In the end, this is a quintessential case of state statutory interpretation.
Following the rules of statutory interpretation that Pennsylvania’s legislature has
determined apply in Pennsylvania, see generally 1 Pa. Const. Stat. §§ 1501-1991, the
Pennsylvania Supreme Court interpreted the plain language of the Pennsylvania
Election Code “to ascertain and effectuate the intention of the General Assembly,” id.
§ 1921(a); contra Stay App. at 27-28. In Pennsylvania, state courts must construe
each statute “to give effect to all of its provisions.” 1 Pa. Const. Stat. § 1921(a). When
“the words of a statute are clear and free from all ambiguity, the letter of it is not to
be disregarded under the pretext of pursuing its spirit.” Id. § 1921(b). State courts
must presume that the General Assembly “intends the entire statute to be effective
and certain” and “does not intend a result that is absurd, impossible of execution or
unreasonable.” 1 Pa. Const. Stat. § 1922(1)-(2).
Consistent with the rules of statutory interpretation, the Pennsylvania
Supreme Court carefully examined the Election Code’s plain language in statutory
context and in the light of the court’s precedents. App. 27a-45a. The court reasoned
that giving “legal effect” under 25 Pa. Stat. § 3050(a.4)(5) to a defective or incomplete
mail ballot so as to preclude acceptance of a provisional ballot—even though that mail
ballot could not itself be counted—would violate its unambiguous holding in
Pennsylvania Democratic Party, 238 A.3d at 378, that such ballots are void, App. 35a-
13
40a. Indeed, that court acknowledged that a contrary reading would nullify a
provisional ballot in favor of a timely-received envelope, even if that envelope does not
contain a ballot. See App. at 38a.6 It found support for this reading in related
provisions of the Election Code, which contemplate only “a completed mail-in ballot”
being received by the relevant deadline. App. 42a. The court’s conclusion is faithful
to the letter of the Election Code and effectuates the General Assembly’s intent to
provide for a provisional voting mechanism that allows qualified voters to vote once
and only once. App. 39a-41a.
For this Court to grant certiorari here, it must conclude that the Pennsylvania
Supreme Court’s routine application of statutorily defined interpretive principles was
something other than ordinary judicial review. Should this Court go down that
uncharted path, federal courts will be asked to do so every time a state court
interprets any part of its statutory election law. Whatever test this Court might adopt
to ensure that state courts do not “arrogate to themselves the power vested in state
legislatures to regulate federal elections,” Moore, 600 U.S. at 36, it does not forbid the
familiar form of statutory interpretation that took place here.
While the Genser dissent offers a technical analysis of the statutory
provisions at issue, its conclusion builds upon a premise that defies common sense:
that an elector “completes the act of voting” when a county board receives a timely
mail-in ballot envelope containing a ballot it cannot lawfully count. See App. at 56a.
The majority persuasively recognized that absurdity would result and that the
dissent’s reading was at odds with the “reality” and “actual process of canvassing.”
App. at 38a-39a.
6
14
CONCLUSION
For the reasons set forth above, and for those given by Plaintiff-Respondents,
the Court should deny the Emergency Application for Stay.
October 30, 2024
Respectfully submitted,
/s/ Aimee D. Thomson
AIMEE D. THOMSON
Counsel of Record
MICHAEL J. FISCHER
JACOB B. BOYER
Office of General Counsel
333 Market Street, 17th Floor
Harrisburg, PA 17101
(223) 234-4986
aimeethomson@pa.gov
SEAN A. KIRKPATRICK
Office of Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120
KATHLEEN M. KOTULA
KATHLEEN A. MULLEN
Pennsylvania Department
Of State
306 N. Office Bldg.
401 North St.
Harrisburg, PA 17120-0500
Counsel for Amici Curiae Commonwealth of Pennsylvania &
Pennsylvania Department of State
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